094-NLR-NLR-V-43-DE-SARAM-et-al.-v.-VANDER-POORTEN.pdf
de Saram v. Vander Poorten.
409
1942Howard C.J. and de Kretser J.
DE SARAM et al v. VANDER POORTEN.
233—D. C., Kandy, 636.
Executor—Agreement to pay costs of application—Promissory note in personalcapacity—Liability—Roman-Dutch law.
Where executors make a promise other than in an expresslyrepresentative capacity, the liability is personal and each is liable forhis share of the debt pro-rata.
Gunasekere v. Gunasekere 143 N. L. R. 73) referred to.
^^PPEAL from a judgment of the District Judge of Kandy.
This was an action to recover a sum of Rs. 1,267.35 against the threedefendants. The claim arose out of certain disputes, which arose in
C., Kandy, Testamentary No. 50, of which the defendants were exe-cutors and which were settled.
After the settlement, the plaintiffs and the 1st and 2nd defendants,who were dissatisfied with the settlement, filed applications for restitutio-in-integrum.
Another settlement was thereafter arranged and it was alleged thatat the settlement the 1st and 2nd defendants had agreed to pay theplaintiffs the costs of the application for restitution. The 2nd and 3rddefendants did not contest the claim.
The learned District Judge held that the 1st and 2nd defendants under-took to pay the costs of the plaintiffs as executors and that they were liablejointly and severally.
H. V. Perera, K.C. (with him J. A. L. Cooray), for the 1st defendant,appellant.—Where executors make a promise other than in an expresslyrepresentative capacity the liability is purely personal, even though theymay describe themselves as executors. It cannot be said in this casethat the consideration for the promise of the executors? was a contractor transaction with the testator. See Farhall v. Farhall The appellantis in the position of a co-debtor and would, in the absence of special agree-ment be liable only in respect of his rateable share—Lee’s Introduction toRoman^Dutch Law (3rd ed.), p. 289.
J. E. M. Obeyesekere (with him H. W. Jayewardene), for the plaintiffs,respondents.—It may be conceded that if an executor promises as executorhe cannot bind the estate and would be liable personally.
The executors in this case are in the position of co-debtors.
[Howard C.J. drew attention, to Gunasekere v. Gunasekere5]—Theevidence in the present case is that there was one promise which wasindivisible. Each of the promisors would be liable to pay the wholedebt. As between themselves there may be right of contribution.
Cur. adv. vult.
■ {1871) L. R. 7 Ch. 123 at 126.
(1941) 43 A'. L. R. 73.
410
HOWARD C.J.—de Saram v. Vander Poorten.
July 10, 1942. Howard C.J.—
This is an appeal by the 1st defendant from a judgment of the Addi-tional District Judge of Kandy, entering judgment for the plaintiffsagainst all three defendants in the sum of Rs. 1,267.35, with costs in theClass under Rs. 900, as the appellant had deposited Rs. 409 in Court.The learned Judge made further order that the appellant should pay theplaintiffs their costs and to the 2nd and 3rd defendants a sum of Rs. 21as their costs. The case arose out of testamentary disputes after thedeath of the late A, J. Vander Poorten. These disputes were settledin D. C., Kandy, Testamentary 50. The executors of the estate were thedefendants. The plaintiffs and the 1st and 2nd defendants were dis-satisfied with the settlement and in consequence of such dissatisfactionthe plaintiffs with the approval of the 1st and 2nd defendants filed papersfor restitutiorin-integrum. Subsequently, the 1st and 2nd defendantsalso filed an application for restitutio-in-integrum. After consultationwith lawyers, another settlement was arranged, the terms of which wereembodied in order ID2 of the Supreme Court dated July 15, 1939. Priorto this settlement there was a consultation between the plaintiffs and the1st and 2nd defendants and their lawyers, Mr. Ebert and Mr. de Vos. Atthat consultation, according to the case put forward by the plaintiffs,the 1st plaintiff raised the question of the expense the plaintiffs hadincurred in connection with the application for restitutio-in-integrum.The 1st defendant thereupon said: “ Dont worry, we will pay you. ”The 2nd defendant, who was present, approved of this undertaking.The 1st plaintiff was persuaded by Mr. Ebert, not to insist on an under-taking in writing with regard to these expenses as there were so manywitnesses. The plaintiffs then agreed to the settlement and the applica-tions for – restitutio-in-integrum were withdrawn. The plaintiffs’ case isthat the 1st and 2nd defendants when they undertook to pay their expensesof the application for restitutio-in-integrum did so as executors of theestate of the late Mr. Vander Poorten. As 'the defendants, andparticularly the 1st defendant, have refused to pay these expenses, whichthey maintain amount to Rs. 1,475.35, they have been forced to cometo Court, ^.’he 2nd and 3rd defendants did not contest the claim ofthe plaintiffs. The appellant, however, contested this claim on thetwo following grounds : —
The obligation to pay the plaintiffs their costs incurred on account
of the restitutio-in-integrum proceedings was a personal one andnot as executors. Hence he is not liable jointly and severally forthe whole amount but only for his share.>
He was only prepared to concede that a sum of Rs. 818 was incurred*
by the plaintiffs as legal costs incurred on account of therestitutio-in-integrum proceedings. As he was not awarethat the third defendant, who was not present when the agree-ment was made,' was prepared to share the costs, he broughta sum of Rs. 409 as his share.
In deciding ground (a) in favour of thf plaintiffs the learned Judgehas relied on the evidence of Mr. Ebert. He states that he accepts thelatter’s evidence that the 1st and 2nd defendants agreed to pay the
411
HOWARD C.J.—de Saratn v. Vander Poorten.
plaintiffs’ expenses as executors of the estate of the late Mr. VanderPoorten. The learned Judge, moreover, thinks that this must be so asthe defendants were all along acting as executors and not in theirpersonal capacity. The evidence was that the executors filed papersfor restitutio-in-integrum and in the settlement were acting as executors.It is necessary to scrutinise Mr. Ebert’s evidence rather closely. Ipexamination-in-chief he states that he is quite certain that the 1stdefendant agreed on behalf of the executors that they would pay theplaintiffs’ expenses. The 2nd defendant was present and he did notdisagree. They undertook to pay the full expenses and they knew whatthe expenses were. Again, in re-examination, he said that the 1st and 2nddefendants did not undertake to pay the expenses personally. Theyundertook to pay the legal expenses as executors. The evidence ofMr. Ebert on this point is also corroborated by that of the 2nd defendant.On the other hand, in cross-examination, Mr. Ebert states that the promis-sory note 1L)I signed on February 15, 1940, after the discussion about thelegal expenses, was made by the 1st and 2nd defendants in their personalcapacity.
I am of opinion that there was no evidence on which the learned Judgecould base his finding that the 1st and 2nd defendants undertook to paythe expenses incurred by the plaintiffs in the restitutio-in-integrumproceedings as executors. The 1st and 2nd defendants were not autho-rized to burden the estate with this obligation. The consideration forthe promise given by the 1st and 2nd defendants was not a contractor transaction with the testator. Hence they could hot bind the estate,vide Farhall v. Farhall'. Moreover, one of the executors, that is to saythe 3rd defendant, was not present. From the fact that IDI was apersonal obligation the inference may be drawn that the undertaking topay the expenses was also personal. Counsel for the respondent,however, whilst conceding that the undertaking was given personallyand not as executors, maintains that it is indivisible and imposed on thedefendants a joint and several liability. The law with regard toco-debtors is dealt with in the Third Edition of Lee’s Introduction to Roman-Dutch Law at p. 289, where the following passage occurs : —/
“ The position of co-debtor must be distinguished from that of asurety. Each co-debtor is liable as principal. The liability of thesurety, as such, is merely accessory and secondary. To constitute therelation of co-creditor or co-debtor, as above defined, it is not enoughthat two or more persons should stipulate for or promise the samething, unless they dp so with the intention of becoming each entitled oreach liable in respect of the whole debt In the absence of evidenceof such intention, the parties, even in the earlier civil law, were notcorrei but were each entitled or liable only in respect of his rateableshare. In the Roman-Dutch Law, following herein the latest RomanLaw, a co-debtor cannot as a rule be made liable in solidum unlessthere is a special agreement to that effect. Thus if William, Thomasand James jointly contract to pay a hundred aUrei to Rudolph, in theabsence of special agreement, each of them is liable only for one-thirdof the total. Apart from agreement, there are cases in which the
1 (1871) L. R. 7 Ch. 123 at 120.
412
The King v. Peirts Appnhamy.
law creates, or presumes, a solidary liability, where no contrary inten-tion is expressed. Such is the case of partners in business contractingin relation thereto ; and persons who become joint parties to a bill ofexchange or promissory note, whether as drawers (makers), acceptors,or indorsers, are similarly liable. Supposing a solidary obligationvalidly created whether by act of party" or by operation of lawone co-debtor who is sued for the whole debt may still claim thebenefit, of division if he has not renounced it, provided that the otherco-debtors are solvent and within the jurisdiction.”
1 would also refer to my judgment in Gunasekere v. Gunasekere in whichI formulated the law as laid down in this passage. In my opinion thereis no evidence in this case of an agreement to create a solidary liabilitynor is such a liability created or presumed by law. Ground (a) musttherefore be answered in favour of the appellant.
With regard to ground (b), the learned Judge has found that theplaintiffs can reasonably claim as expenses a sum of Rs. 1,475.35demanded in the plaint. The undertaking given by the 1st and 2nddefendants was, according to Mr. Ebert, to pay the expenses of theplaintiffs. In paragraph 7 of the plaint the plaintiffs claimed the entireexpenses incurred by the plaintiffs in connection with the application madeby them to the Supreme Court for relief by way of restitutio-in-integrum.The testimony of Mr. Ebert and the 2nd defendant established that the1st and 2nd defendants as well as the plaintiffs were interested in thisapplication. In consequence, the 2nd defendant, on the instructionsof the appellant, paid to Mr. Ebert a sum of Rs. 715 towards the expensesincurred by the plaintiffs in connection with the application. This summust be deducted from Rs. 1,267.35 paid §s the expenses of the plaintiffs.A balance sum of Rs. 552.35 is therefore, owing for which sum theappellant is liable to pay one-third, namely, Rs. 184.12. As he hasalready paid into Court a sum of Rs. 409, the decree of the DistrictCourt must be set aside so far as he is concerned and judgment enteredfor him with costs in this Court and the District Court. As the appellantis willing to pay such sum the plaintiffs are declared entitled to the sumof Rs. 409 deposited by the appellant in Court. No order is made withregard to the amount to be paid by the 2nd and 3rd defendants.
• de Kretser J.—I agree.
-e-
Appeal allowed.